Progress in assignments in 700/800 MHz and 2.6 GHz

[2 September 2017] ICASA has published for comment a Second Draft Radio Frequency Spectrum Assignment Plan: Rules for Services operating in the Frequency Band from 825 to 830 MHz and 870 to 875 MHz (IMT850).

The deadline for submissions on the Draft Radio Frequency Spectrum Assignment Plan (RFSAP) is 16h00 on 20 October 2017. Submission should be sent to Mr Manyaapelo Richard Makgotlho (rmakgotlho@icasa.org.za).

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[12 February 2017] ICASA has acknowledged the obvious and published a terse notice “deferring until further notice” the process for assignment of spectrum in the 700 MHz, 800 MHz and 2.6 GHz bands it launched on 17 July 2016.

Both the Minister and Cell C had applied to the Gauteng Division of the High Court seeking an interim interdict against ICASA proceeding pending a review of ICASA’s decision to proceed with the ITA. They were supported in their applications by Telkom.

In essence the Minister and Cell C attacked ICASA’s decision on the bases that:

ICASA may not lawfully issue the ITA until has considered the spectrum policy then before Cabinet

The ITA contradicts the 2013 Radio Frequency Spectrum Policy

The ITA does not meet the statutory obligation on ICASA to promote competition (and it was alleged that the ITA was in fact anti-competitive), and

ICASA’s conduct was irrational on a number of grounds.

ICASA sought to defend its actions by raising defences that:

ICASA is independent and the Minister cannot demand deference to a draft policy

The delays to the finalisation of the spectrum policy can no longer be tolerated

The ITA is consistent with the National Radio Frequency Plan

Certain valid criticisms against the ITA had been remedied by subsequent amendments to the ITA (these related to HDI ownership required to participate and dates for meeting roll-out targets, amongst others)

ICASA acted rationally in issuing the ITA

There would not be irreparable harm to any party were the ITA to proceed

Interestingly the judge situated the dispute within a Constitutional context:

“The radio frequency spectrum, like water and electricity is a crucial dimension of social life. Access to the utility of the frequency spectrum implicates the optimal achievement of several constitutional values and rights, including the freedom of trade, modern education and the dissemination of information pursuant to freedom of expression. Achieving effective access to its utility implicates equality too because of its role in facilitating these several rights. The regulatory regimes owes…., in part, its lineage to the Constitution. Accordingly, radio frequency spectrum is a highly regulated affair because of its scarcity and critical role in the communications industry and the importance, in turn, of the industry to modern economic and social activity.”

The judge separated out three issues for resolution:

Alleged pre-emption of the Minister’s new national policy

Alleged non-compliance with the National Radio Frequency Spectrum Plan

The risk of anti-competitive attributes contaminating the ITA.

He also noted that there was criticism raised that the ITA “consists in part of technological demands of industry actors that are irrational”

Can ICASA lawfully issue the ITA before applying its mind to the Minister’s “imminent policy”?

The Court examined the legislative framework relating to the independence of ICASA and management of spectrum, finding that “it is plain that the decision that ICASA may make are, in certain important respects, circumscribed, as to process, although its substantive decisions are not subordinated to any other statutory authority”.

After examining examples of the relationship between the Minister and ICASA provided for in the Electronic Communications Act, the judge concluded that ICASA did have a duty to co-operate with the Minister, but that this was confined to existing policies and the law. Given that there was a duty on ICASA to act in assigning the spectrum, the Court saw no reason for it to “trump ICASA’s choice not to wait indefinitely” for the new policy to be finalised.

There is an important assertion of ICASA’s independence:

“In addition to the several considerations already mentioned is the further fact of ICASA’s status as a chapter 9 institution. The appropriateness of such bodies being able to enjoy the power to choose to defy the executive government in defence of their independence is no small matter, and warrants endorsement as a necessary condition of diffused power the democratic order founded on our Constitution. Such bodies are entitled not to be second-guessed by a court on the wisdom of any such defiance, provided they stick to the limits of their statutory powers.”

Is the National Radio Frequency Plan 2013 violated by the ITA?

The judge highlighted that part of what ICASA was proposing was to assign spectrum to participants in the ITA which spectrum was currently assigned to someone else, and found that this was of questionable validity. Furthermore, it was found that ICASA decision to assign spectrum now and defer access to it until an unknown future date dependant on a number of other happenings “has the look of a reckless decision and for that reason an irrational decision”.

This finding established the existence of a prima facie right which had been infringed.

Has ICASA complied with its obligation to promote competition?

The Court ruled that there was no convincing evidence that ICASA had not considered the competitive impact of the ITA prior to releasing it and further that disagreement with the substantive approach taken by ICASA was of itself not enough to establish that ICASA had breached a positive duty under law to take into account competition matters.

Irreparable harm and balance of convenience

The judge found that – even though the infringement of a right established through the violation of the National Radio Frequency Plan by the ITA was not a substantial infringement – there were exceptional circumstances in that industry actors were compelled to participate in the ITA while knowing that a review process could in future find the ITA unlawful and set it aside.

No irreparable harm to ICASA or participants would flow from granting the interdict and the balance of convenience favoured stopping the process now rather than letting it continue while the review was undertaken.

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[1 October 2016]Deja vu. ICASA’s Invitation to Apply process is unlikely to continue given the interdict granted in favour of the Minister of Telecommunications and Postal Services prohibiting ICASA from continuing with the process until a review process has been completed.

[16 September 2016] ICASA has announced an extension for the submission of bids to 4 November 2016 (effectively 30 days from the previous deadline of 3 October 2016). All timelines applicable to the ITA will be pushed back by the same period.

ICASA Invitation Schedule

Day

Event

Start

Finish

X + 56 + 30

Application date

04 November 2016

04 November 2016

X + 70 + 30

Publication of list of applicants

24 November 2016

24 November 2016

X + 84 + 30

Submission of queries/clarifications to Applicants regarding their Applications

28 November 2016

15 December 2016

X + 98 + 30

Announcement of Applicants qualified as Bidders

10 January 2017

10 January 2017

X + 112 + 30

Bidder seminar and mock auction

16 January 2016

20 January 2017

X + 119 + 30

Start of auction

27 February 2017

27 February 2017

Y + 30

End of auction

10 March 2017

10 March 2017

Y + 1 + 30

Announcement of auction result

13 March 2017

13 March 2017

Y + 31 + 30

Deadline for payment of auction fee

24 April 2017

24 April 2017

Z + 30

Issuing of the Licenses

02 June 2017

02 June 2017

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[5 September 2016] ICASA has published its responses to the various queries raised by stakeholders with regard to the Invitation to Apply (ITA) published on 15 July 2016.

[12 August 2016] Below is a link to the founding papers filed by the Minister of Telecommunications and Postal Services on 8 August 2016 on a semi-urgent basis for an order:

Interdicting and preventing ICASA from implementing the licensing steps and process referred to or contemplated in the Invitation to Apply (“ITA”) published in the Government Gazette of 15 July 2016, pending the review of ICASA’s decision to launch the ITA.

Declaring that ICASA’s decision as communicated to the Minister on or about 15 July 2016 to initiate a licensing process to invite, consider and/or issue frequency spectrum licences set out in the ITA is unlawful, invalid and of no force and effect and, to the extent required, declaring the publication of the ITA to be invalid, unlawful and of no force and effect.

The Annexures include some items of interest, such as the Memorandum entered into between the Department of Telecommunications and Postal Services and the Department of Communications to regulate their cooperation in the aftermath of the Presidential decision to split the old Department of Communicationsas well as items of correspondence between ICASA the Minister of Telecommunications and Postal Services.

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[17 July 2016] ICASA have published an Invitation To Apply (ITA) for a Radio Frequency Spectrum licence to provide mobile broadband wireless access services for urban and rural areas in the complimentary bands, 700MHz, 800MHz and 2.6GHz. The focus in assigning these bands is to further the aims of the National Development Plan and SA Connect Policy, being nationwide broadband access for all citizens by 2020.

The deadline for enquiries is 4 August 2016 at 16h00, and the date for application is between 09h00 and 15h00 on 3 October 2016 with the relevant steps to follow found in the links below.

This was an unexpected move by ICASA to break the impasse around assignment of this spectrum, which has been held back by the insistence of the policy-maker – now the Department of Telecommunications and Postal Services and previously the Department of Communications – that ICASA must wait for a clear policy framework before proceeding. It does not appear as if the Department was aware that the ITA would be published.

[5 October 2015] We have prepared a two-page summary of the ICASA Information Memorandum which also show the annual radio frequency spectrum licence fees payable in respect of each of the licenses to be auctioned.

[13 September 2015] ICASA seems to be doing all it can to prepare for an assignment process for IMT spectrum as soon as the relevant policy is in place. The latest step takes the form of a memorandum intended to provide further information on the future licensing process for the 700 MHz, 800 MHz and 2.6 GHz bands.

[11 September 2015] The process of putting fallow access spectrum to work took another tiny step forward with ICASA doing some housekeeping and publishing a notice in the Government Gazette withdrawing Invitations to Apply (ITAs) previously issued in respect of the 800 MHz and 2.6 GHz bands.

2. General notice number 44, published in Government Gazette No. 34961 of 2012 (Erratum) on the draft invitation to apply for radio frequency spectrum licence to provide mobile broadband wireless access service for urban and rural areas using the complimentary bands, 800 MHz and 2.6 GHz.

3. General notice 193, published in Government Gazette No. 35123 of 2012 (Erratum) on the draft invitation to apply for radio frequency spectrum licence to provide mobile broadband wireless access service for urban and rural areas using the complimentary bands, 800 MHz and 2.6 GHz

Meanwhile the Minister of Telecommunications and Postal Services indicated in remarks to Techcentral that the South African cabinet has reiterated its requirement that new spectrum policy must be finalised before the end of March 2016.

“The most important thing is to enable broadband. We are quite aware of the constraints that are there.”

Quite….

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[22 January 2014] ICASA has issued an Invitation to Bid for the provision of services relating to the assignment of available radio frequency spectrum in the 700 & 800 MHz bands as well as the 2.6 GHz band.

Full description:

Appointment of a service provider to assist (ICASA) with determining the fair economic value of the 700, 800 and 2600 MHz bands and advise and develop rules for market-based assignment and licensing models for a period of three (3) months, on 90/10 PPPFA, as amended.

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